Sarbanes-Oxley Act
A law passed by Congress that requires the CEO and CFO to certify that their firm's financial statements are accurate.
examples of expansion of government regulation
sarbanese-oxley act
economic recovery legislation
financial and health care reforms
Article IV of the Constitution
ensures one nation versus individual states will provide the framework for citizenship and commercial activities
article IV contains what clauses
full faith and credit clause
privileges and immunities clause
article V
provides the process governing the amendment of the constitution
article VI
describes the Constitution as the "supreme law of the land"
also clarifies that federal laws take priority when there is a conflicting state or local law
article VII
states the constitution will become effective upon ratification of the states
Fourteenth Amendment
contrains 3 important clauses:
1. privileges and immunities
2. due process
3. equal protection
separation of powers between levels of government
is known as federalism
Separation of Powers
concept recognizes that each level of government has a separate and distinct role to play
constitution > all laws
federal law > state law or local ordinanes
true
Under the Supremacy clause
courts can be called upon to decide if a state law is invalid because it conflicts with a federal law
Preemption
if a federal law preempts a subject, then any state law that attempts to regulate the same activity is unconstitutional under the supremacy clause
Chamber of Commerce v. Whiting
-supreme court upheld an arizona law that penalizes employers who knowingly hired HUMANS that were foreign and were unauthorized to work
- ruled: that fed immigration law does not preempt arizona statute
Commerce Clause
gives Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
Commerce clause requires analysis in 4 areas:
- regulation of foreign commerce
- regulation of interstate commerce
- impact on interstate commerce
- possible limitations on federal regulatory authority
contract clause
Article I Section 10: No STATE shall pass any law impairing the obligation of contracts
doesn't apply to the federal government
police powers
requiring state legislation and regulation to protect the public's health, safety, morals, and general welfare
- last phrase gives state government expansive power to regulate business activities
dormant commerce clause concept
The impact of the commerce clause as a means of limiting state and local governments' powers to regulate business activities.
Gonzales v. Oregon (2006)
doctor-assisted suicide okay
(Commerce clause power does not support a decision by the Attorney General to prosecute doctors for violation of the Controlled Substances Act who assist with a State-authorized "suicide")
irreconcilable conflicts
when a state or local law requires something different than a federal law or regulation and both laws cannot be satisfied. under commerce clause analysis, the state or local law is declared invalid or void
prohibiting discrimination
A standard of review under the Commerce Clause that can invalidate state and local laws. When state and local laws discriminate against or negatively impact interstate commerce, such laws are invalid and void.
establishment clause
congress shall make no law "respecting an establishment of religion
Free Exercise Clause
congress can make no law "prohibiting the free exercise of religion
Burwell v. Hobby Lobby
exemptions for 'closely held' corporations regarding denial of health coverage for contraception
symbolic speech
Using actions and symbols rather than words to convey an idea
Chaplinsky v. New Hampshire (1942)
The Court ruled that the first amendment did not protect "fighting words.
Brandenburg v. Ohio
extended freedom of speech to new limits. Threats of a KKK leader were deemed ok b/c of a failure to prove a real danger from them. Declared that speech is protected unless proven that actions directly incited the action
obscenity
unprotected speech based on community standards
Miller v. California
A 1973 Supreme Court decision that avoided defining obscenity by holding that community standards be used to determine whether material is obscene in terms of appealing to a "prurient interest" and being "patently offensive" and lacking in value.
overbreadth doctrine
means the legislators have gone too far in seeking to achieve a goal
(A principle used by courts to invalidate legislation that is broader in scope than is necessary to regulate an activity. This doctrine may be utilized to protect constitutional rights,
Snyder v. Phelps (2011)
Speech on a public sidewalk, about a public issue, is protected, even if the speech is found to be "outrageous" and causes emotional distress.
(court declined the captive audience doctrine to a situation like this one. protestors stayed in the authorized
Brown v. Entertainment Merchants Association
founded that video games were protected under 1st amendment as other forms of media and court nullified law that video games couldn't be sold to minors
(court asked to determine constitutionality to prohibit sale or rental of violent video games to minor
Elonis v. US (2015)
Elonis was in the process of divorce and made a number of public Facebook posts that were violent towards others.
Ruling: The Court held that the prosecution needed to show that Elonis intended the posts to be threats.
Two ways to decide what a true threa
commercial speech
Communication in the form of advertising. It can be restricted more than many other types of speech but has been receiving increased protection from the Supreme Court.
prior restraint
government censorship of information before it is published or broadcast
Defamation
the action of damaging the good reputation of someone; slander or libel.
Libel
a published false statement that is damaging to a person's reputation; a written defamation.
(tort theory)
New York Times v. US
The President argues that the publication of the Pentagon Papers is in violation of executive privilege. Result: The barring of the publication of these papers is in violation of the 1st A. Publication does not imperial the public.
District of Columbia v. Heller
U.S. Supreme Court case that upheld that the Second Amendment protects an individual's right to possess a firearm
McDonald v. Chicago
The right of an individual to "keep and bear arms" protected by the 2nd Amendment is incorporated by the due process clause of the 14th Amendment and applies to the states.
eminent domain
Power of a government to take private property for public use.
Kelo v. City of New London
Eminent domain case: Local governments may force the sale of private property and make way for private economic development when officials decide it would benefit the public.
(court concluded that the city of new london designed its plan to provide signif
due process clause
part of the 14th Amendment which guarantees that no state deny basic rights to its people
Equal Protection Clause
14th amendment clause that prohibits states from denying equal protection under the law, and has been used to combat discrimination
procedural due process
Constitutional requirement that governments proceed by proper methods; limits how government may exercise power.
minimum rationality
classifications: rationally connected to a permissible or legitimate government objective
(ex: height, weight, age, testing, school desegregation, etc.)
Strict Scrutiny
necessary to a compelling state interest
(ex: suspect classes, race, national origin, legitimacy)
quasi-strict scrutiny
substantially related to an important government interest
(ex: gender)
property
the legal right to exclude others from resources that are originally possessed or are acquired without force, theft, or fraud
mortgage
a specific type of loan that is used to buy real estate
Real Property law
applies ownership to land and interests in land such as mining rights or leases
personal property
applies to movable resources, those things that people do not annex to the land
tangible personal property
applies to things one can touch; physical things
Intangible Personal Property
applies to non-physical things; like various types of valuable information
Coastal Oil & Gas Corp. v. Garza Energy Trust Et Al.
- court refused to hold coastal liable for a technical trespass under salina's land. determined that the nature of subsurface rights required a showing of some injury
- salinas lease the right to drill on share 13. court argued that any losses from gas ca
fixture
An item of personal property that has been converted to real property by being permanently affixed to the realty.
estate
the bundle of rights and powers of land ownership
fee simple
represents the maximum estate allowed under law, the owner having the fullest legal rights and powers to possess, use, and transfer the land
life estate
grants an ownership in land for the lifetime of a specified person
Leasehold Estate
the property right granted to tenants by a landlord
joint tenancy
The joint ownership of property by two or more co-owners in which each co-owner owns an undivided portion of the property. On the death of one of the joint tenants, his or her interest automatically passes to the surviving joint tenants.
tenancy in common
form of co-ownership in which the shares may be unequal and there is no right of survivorship
easement
the right to use land for a specific and limited purpose
(often a right to cross over land)
natural easement
easement by necessity
Negative Easement
an adjoining landowner cannot do anything that would cause your land to cave in or collapse
Easement by Prescription
Created through continual use over a certain period of time. It must be continual, visible, & w/o approval. Example - a private road becomes public.
duke energy carolinas v. gray
conclusions:
- easement is entitled to the same legal respect as other forms of real property
(- one may acquire anothers real property by claiming the property and occupying it for a long period of time so long as the original owner doesn't take action t
bailment
(bailor) giving possession and control of personal property to another person (bailee), with the understanding the other person must return the object at some or otherwise dispose of it.
bailor
the party who gives up possession , but not the title, of personal property in a bailment
bailee
A person who receives personal property from another as a bailment.
ownership
the state or fact of owning something
contract
a binding agreement between two or more persons that is enforceable by law
(controls the way owners make agreements to exchange resources in the property-based legal system)
rule of first possession
the first person to reduce previously unowned things to possession becomes their owner
Popov v. Hayashi
baseball possession case; ended in a partition ruling- judge split the proceeds of the baseball between the 2 men
Adverse Possession Elements
1.) Open and notorious (possessor must occupy the land in such a way as to put the true owner of the land on notice)
2.) actual and exclusive (possessor must physically occupy the land. However, the building of a fence around the land or construction of a
Homestead Act
1862 - Provided free land in the West to anyone willing to settle there and develop it. Encouraged westward migration.
ownership through confusion
arises when fungible goods (goods that are identical) are mixed together
accession
the right of an owner of property to an increase in that property
(something being added to original property makes everything added still the original owners)
gift
voluntary transfer of ownership without consideration
testamentary gift
a gift made through a will
title
ownership
deed
the official document transferring ownership from seller to buyer
Warranty Deed
A deed in which the grantor makes formal assurance as to quality of title.
Special Warranty Deed
specifies that certain legal claims against the land, like mortgages, exist but guarantees that no other claims exist
Quitclaim Deed
makes no guarantees other than that the grantor surrenders all claim against the land
security interests
mortgages and secured transactions under Article 9 of the Uniform Commercial Code
deeds of trust
a borrower signs a note, which shows the borrower's debt to the lender, and then signs a deed of trust, which grants the lender a security interest in the building and land put up to secure the loan
(similar to mortgages)
land sales contract
the owner of land sells it by contract subject to the condition that the seller retains title to the land until the buyer pays the purchase price
mortgages
Loans from banks and building societies that are used to buy land and buildings such as offices and shops.
mortgagors
the owner of land who places a mortgage on it
foreclosure
The seizure of property from borrowers who are unable to repay their loans
deficiency
balance owed by the debtor to the creditor-mortgagee
anti-deficiency judgment statutes
prevents mortgagees from obtaining anything else from mortgagors once the land has been foreclosed and auctioned (generally only apply to protect homeowners)
Right of Redemption
allows a mortgagor, before foreclosure, to get back the land upon payment of the full amount of the debt
secured transaction
involves a creditor who has sold something on credit or made a loan to a debtor who agrees to give the creditor a security interest in a valuable object, called collateral
collateral
something pledged as security for repayment of a loan, to be forfeited in the event of a default.
attachment
takes place when
(1) a secured party has given value
(2) the debtor owns the collateral
(3) a security agreement is given
perfection
arises when a security interest has attached and the creditor has taken all proper steps required by Article 9
financing statement
A document that the secured party files to give the general public notice that it has a secured interest in the collateral
Purchase Money Security Interest (PMSI)
a security interest that secures the purchase price of goods bought for personal or household use
buyer in the ordinary course of business
a buyer who buys from someone who ordinarily sells such goods in his or her business
Artisan's Lien
arises when someone who contributes parts and/or service to an object of personal property is not paid.
Mechanic's Lien
arises when someone contributes materials and/or service to real estate, usually a building, and is not paid.
Public Nuisance
one arises from use of land that causes inconvenience or damage to the public
Private Nuisance
An unreasonable use of one's land so as to cause substantial interference with the enjoyment or use of another's land.
Cook v. Sullivan
- Sullivans transformed their property to support a new house, but this had effect of unreasonably and substantially harmed the Cook's property.
(- Water flooded the Cook's property did not flow from the Sullivan's property - if it had it would have been
Zoning Ordinance
laws that divide counties or municipalities into use districts designated residential, commercial, or industrial
Rule Against Perpetuities
limits all exercise of property over resources to a duration of "lives in being plus 21 years
intellectual property
intangible creative work that is embodied in physical form and includes copyrights, trademarks, and patents
trade secret
any form of knowledge or information that has economic value from not being generally known to others, or readily ascertainable by proper means and has been the subject of reasonable efforts by the owner to maintain secrecy
to establish a trade secret you:
1) establishing that a trade secret exists
2) demonstrating misappropriation
Al Minor & Associates, Inc. v. Martin
- a client list can serve as a trade secret because it provides value to the owner
(- the court found that even information that was memorized and not written down can be subject to trade secret protection
- all information used within a company is not ne
misappropriation
occurs when one improperly acquires secret information through burglary, espionage, or computer hacking
injunction
an order by a judge either to do something or to refrain from doing something
economic espionage act (EEA)
an act that makes it a felony to steal, copy, alter, or transmit a trade secret
patent
conveys a right to exclude others from making, using, selling, or importing the covered invention
Utility Patent
a patent that protects the functionality of the invention
(20 years from filing date)
design patent
a patent that offers protection for the way a product looks
(15 yrs from issue date)
plant patents
patents that recognize the discovery of new plant types that can be asexually reproduced
(20 yrs from filing date)
Diamond v. Chakrabarty (1980)
Ruled that a man-made life form (genetic engineering) could be patented.
Alice Corporation Pty. Ltd. v. CLS Bank International
- the court is concerned about allowing patents on inventions that would "preempt" (completely control) an entire area of discovery
(- to demonstrate if an invention is patentable, a patent owner must survive the alice "two-step": (1) determine if the inv
KSR International Co. v. Teleflex, Inc
Facts: Teleflex sued KSR for patent infringement in the production of Adjustable Pedal Assembly With Electronic Throttle Control. KSR countered that the claim was invalid because the subject matter was obvious and that the TSM test was not applied correct
patent trolls
suggests that non-producing patent owners do not contribute as much to the innovation environment compared to the costs imposed by their enforcement
Octane Fitness LLC v Icon Health and Fitness Inc
patent law suit regarding fee shifting
TC Heartland LLC v. Kraft Foods
Patent owners can sue corporate defendants only in the district where the defendant has incorporated or committed the crime
trademarks
Designs and names, often officially registered, by which merchants or manufacturers designate and differentiate their products
Lanham Act of 1946
a 1946 law that spells out what kinds of marks (including brand names) can be protected and the exact method of protecting them
(protects trademarks, service marks, certification mark, collective mark)
trade dress
refers to a color or shape associated with a product or service
Two Pesos v. Taco Cabana (1992)
Upheld a federal court judgment in favor of Taco Cabana that claimed that Two Pesos imitated the appearance and d�cor of its restaurants
Store's trade dress can have "inherent distinctiveness
Principal Register
Legal publication containing trademarks that have been considered acceptable and are registered
supplemental register
A legal publication where a name or descriptive term must sit for five years and develop a secondary meaning in order to be moved to the Principal Register
infringement
A violation, as of a law, regulation, or agreement; a breach
likelihood of confusion
context of a case where in parties with strong marks in different areas may be in conflict when selling products in same stores
generic
without a trademark; general
Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc.
- both kraft and cracker barrel restaurants have legitimate trademarks. Their use in the same locations is what creates the problem
(- even though kraft and cracker barrel may not use identical marks on identical products, a likelihood of confusion can st
trademark dilution
The unauthorized use of a distinctive and famous mark in a way that impairs the mark's distinctiveness or harms its reputation.
2 types of revolution recognized under federal law
1) blurring
2) tarnishment
blurring
occurs when firm uses another trademark in a way that blurs the distinctiveness of a famous mark
tarnishment
occurs when a firm uses a trademark in a way that creates a negative impression about the famous company
copyright
gives those who have this property a monopoly over the right to exclude others from copying and marketing for a limited period of time
Feist Publications, Inc. v. Rural Telephone Service Co.
supreme court ruled that the mere effort and alphabetic arrangement of names that went into a telephones directory's white pages was insufficiently creative to warrant a copyright
piracy
large scale copyright infringement
fair use
the conditions under which you can use material that is copyrighted by someone else without paying royalties
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.
court asserted, "we hold that one who distributes a device with the object of promoting its use to infringe copyright, as show by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by
Campbell v. Acuff-Rose
(- 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman")
- SC ruled that parody may be fair use even though it has commercial purpose and copies the "heart" of the original work
(- Version is sufficiently transformative not to violate the copyright he
Digital Millennium Copyright Act (DMCA)
makes illegal the effort to get around (circumvent) devices used by copyright owners to keep their works from being infringed.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
international standards that most industrialized nations have agree to uphold
tort
A civil wrong
intent
the desire to bring about certain results
Types of intentional torts
assault, battery, false arrest, defamation, invasion of privacy
assault
the placing of another in immediate apprehension for his or her physical safety
battery
an illegal touching of another
Harper v. Winston County (2004)
- harper was not physically injured, but she still can claim battery if she was touched in an offensive or hostile way, like being "grabbed" and "pulled"
(- the trial court ruled that wright was touching merely to gain control of harper. However, there is
infliction of mental distress (or emotional distress)
battery to the emotions
invasion of privacy
interfering with a person's right to be left alone
Ehling v. Monmouth-Ocean Hospital Service Corp.
-Elling had a facebook page and she posted about a shooting in the DC holocaust museum.
(-She is a nurse and basically said she would have let the shooter die and criticized the paramedics.
-Her nursing license was yanked and she sued; doctors and nurses
False Imprisonment
unlawful restraint or restriction of a person's freedom of movement
Malicious Prosecution (or false arrest)
A tort in which one person wrongfully subjects another to criminal or civil litigation for the sole purpose of causing problems for that other person, often in retaliation for previous litigation between the two.
trespass
to enter another's land without consent or to remain there after being asked to leave
conversion
the wrongful exercise of dominion (power) and control over another's personal property
defamation
the publication of untrue statements about another that hold up that individuals character or reputation to contempt and ridicule
slander
when defamation is oral
libel
written defamation
fraud
an intentional misrepresentation of a material fact that is justifiably relied upon by someone to his or her injury
injurious falsehood
consists of the publication of untrue statements that disparage the business owner's product or its quality
intentional interference with contract
occurs when the defendant intentionally induces a third party to break a contract with the plaintiff
Negligence
unreasonable behavior that causes injury
Elements of Negligence
1. Duty
2. Breach
3. Causation
4. Damages
duty
A moral or legal obligation; a responsibility
Iannelli v. Burger King Corp.
-The Iannelli family went to eat at burger king where there was a group of obnoxious, swearing teenagers. The father asked them to stop and the teens beat him.
(-Argued that a commercial enterprise (restaurant) has a duty to exercise reasonable care towar
reverse and remand
to nullify the lower decision and return the case for reconsideration or retrial
willful and wanton negligence
extremely unreasonable behavior that causes injury
cause in fact
an act or omission without which an event would not have occurred. Courts express this in the form of a rule commonly referred to as the "but for" rule: the injury to a person would not have happened but for the conduct of the wrongdoer.
proximate cause
Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.
Palsgraf v. Long Island Railroad
Background: Man tried to board train with fireworks, RR attendants attempted to help him onto trail, but the package was dropped and the fireworks exploded, causing Palsgraf to be injured. Palsgraf sued RR for negligence
I: Foreseeability, negligence
R: M
affirmative defense
a defense whereby the defendant offers new evidence to avoid judgement
contributory negligence
A legal defense that may be raised when the defendant feels that the conduct of the plaintiff somehow contributed to any injuries or damages that were sustained by the plaintiff.
comparative responsibility
- if the plaintiff's negligence in any way contributed to the injuries, you subtract the percentage of his liability
- defendant pays 90%
Assumption of Risk Defense
arises from the plaintiff's knowing and willing undertaking of an activity made dangerous by the negligence of another
Strict Liability Tort
legal responsibility for injury-causing behavior that is neither intentional nor negligent
Strict Products Liability
the cause of action under which commercial sellers of defective products are held liable without negligence
production defects
arise when products are not manufactured to a manufacturer's own standards
design defects
occur when a product is manufactured according to the manufacturer's standards, but the product injures a user due to its unsafe design
Branham v. Ford Motor Co.
court determined in SC the risk utility test now standard of all product design defects cases because it focuses on design of product rather than customer of the product.
Dram Shop Acts
A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contri
Compensatory Damages
1) past and future medical expenses
2) past and future economic loss
3) past and future pain and suffering
Punitive Damages
damages exceeding simple compensation and awarded to punish the defendant.